Mutual wills – be clear about your intentions

In the recent High Court case, two sisters successfully argued that their parents had made mutual wills, making their mother’s later wills invalid. This was a bitter dispute pitting the two sisters against their own children, which could have been avoided if the original wills had included a clear statement of the testators’ intentions.

The background

In 2000, Mr and Mrs Clark executed wills in mirror terms. They left everything to the surviving spouse and agreed that on the death of the survivor, what remained would be split equally between their two daughters, Ann and Lynn. Mr Clark died shortly afterwards and in accordance with his will, his estate passed to Mrs Clark.

In the years that followed, Mrs Clark made 13 subsequent wills. The last of these wills left the vast majority of the estate to her grandchildren, and comparatively little to Ann and Lynn. Following Mrs Clark’s death, Ann and Lynn issued proceedings challenging Mrs Clark’s last will, on the basis that Mr and Mrs Clark had previously made binding “mutual wills”, meaning Mrs Clark had not been entitled to depart from the wills executed in 2000.

What are mutual wills?

Mutual wills are wills made by two or more people, usually in mirror terms. Crucially, unlike simple mirror wills (where the testators agree to make matching wills but are free to alter or vary them unilaterally at any time), mutual wills impose an obligation on the parties not to vary or revoke their wills without the consent of the other. This means that, once one person dies or loses capacity, the others are effectively barred from changing their wills.

What was the problem?

The issue which arose in this case was an evidential one. The will drafting said that the estate was left to the other spouse ‘without any sort of trust obligation’, which the grandchildren argued meant the wills could not have been mutual. Further, the wills contained nothing to confirm they were intended to be mutual.

However, Ann and Lynn gave evidence that their parents promised each other not to change their wills. Ann had been present at the meeting with the solicitors when the wills were executed in 2000, and said her parents were anxious to ensure the terms of the wills were ‘set in stone’ and could ‘never change again’.

The grandchildren were unable to provide witness evidence that the wills were not mutual - they were minors in 2000 and their evidence was simply that they had no knowledge of any intention for the Wills to be mutual. The judge considered the sisters’ evidence as credible, and therefore found in their favour – but only after the time and cost of litigation.

What lessons can be learnt?

This decision was made almost entirely on witness evidence at trial. It was therefore fortunate for the sisters that one of them had been present when the wills were executed and that their parents had discussed their wills with them relatively openly. This is often not the case.

The trial and the dispute could potentially have been avoided entirely if the wills had clearly stated that they were mutual, or if there was some other written document evidencing the couple’s intention. In the absence of such a statement, it was always arguable that the wills were simply mirror wills, not subject to any binding agreement.

It is also important to note that mutual wills are often not suitable: mutual wills severely limit the survivor’s ability to change their will, which can be problematic if circumstances change. Incorporating a trust structure into wills can often be a more flexible solution.